Wrongful Dismissal

Meaning Wrongful dismissal is essentially a claim for breach of contract. This situation arises when your employer breaches a term in your employment contract, which results in dismissal or forces you to leave. It is not the same as unfair dismissal. You do not need two years service to claim for wrongful dismissal. If you are dismissed whilst on probation, this is one of the heads of claim that you can consider. You can also consider whether your dismissal falls under any of the automatically unfair reasons for dismissal or was discriminatory.

Automatically Unfair Reasons for Dismissal Every employee has statutory (legal) employment rights which are listed under section 104 of the Employment Rights Act 1996 (ERA 1996) and other pieces of legislation. It is an automatically unfair dismissal if you are dismissed for asserting any of the listed statutory rights. These rights include any right given by ERA 1996 for which you can sue in an Employment Tribunal, so that any new employment right which is inserted into ERA 1996 automatically becomes a relevant statutory right in the same way as the other listed rights. You are protected from unfair dismissal by ERA 1996, but you need to have been employed by your employer for two years before you can claim unfair dismissal. If you are dismissed for a reason related to your statutory rights, it is an automatically unfair dismissal. In the majority of automatically unfair dismissal cases, you will be able to sue for unfair dismissal even if you don’t have the two years qualifying service. The only exceptions are in dismissals because of a spent conviction, and dismissals where there is a transfer of an undertaking (TUPE 2006) which require two years’ service if you started working on or after 6th April 2012.

Unfair Dismissal You have a right not to be unfairly dismissed under section 94 Employment Rights Act 1996 (ERA 1996). It is section 94 that gives you the right to sue for unfair dismissal in the Employment Tribunal. In order to sue for unfair dismissal, you have to have been dismissed. Section 95 ERA 1996, lays out the circumstances in which the Employment Tribunal will consider that you have been dismissed. Section 97 ERA 1996 lays out the effective date of termination which is important for calculating the time limit and whether you have the qualifying service to bring an unfair dismissal claim. Section 98 ERA 1996 sets out how the Employment Tribunal will determine whether you have been fairly or unfairly dismissed. Once the Employment Tribunal establishes that you have a right to bring an unfair dismissal claim, it will be up to your Employer to prove that the principal reason or reasons for your dismissal was a potentially fair reason. If your Employer is able to prove that the reason for your dismissal was potentially fair, it will then consider whether in all the circumstances of the case, your dismissal was fair or unfair. There are a number of qualifying conditions and exceptions, but mainly you have to be an employee with two years continuous employment (with exceptions). You as the claimant would have responsibility for proving that you meet the relevant qualifying conditions.

Constructive Dismissal Constructive dismissal is defined in section 95(1) Employment Rights Act 1996. It is where you resign with or without notice, because of a fundamental or repudiatory breach of the employment contract by your Employer. The breach can be a breach of a written term of your contract or a breach of an implied term, and must be so serious that you had no other option but to resign. If you are the one who commits a repudiatory breach, your Employer is entitled to summarily dismiss you. If you are constructively dismissed, your claim would be for normal unfair dismissal in the Employment Tribunal, and carries the same basic and compensatory award. Generally, you must have two years’ service to claim constructive dismissal.

EDT The Effective Date of Termination (EDT) is the date your employment ended and is laid out in s97 ERA 1996. It is very important in unfair dismissal because it sets the end of your period of continuous employment and is used to determine whether you have the two years qualifying period of employment necessary to claim unfair dismissal. The EDT affects how much you get for the Basic Award and for calculating a week’s pay. You must bring your claim before the Employment Tribunal within three months of the EDT. The EDT is not always the date when you are told you have been dismissed, and it can vary depending on the particular situation.

EDT EDT where you are dismissed with notice If you are dismissed with notice by your Employer, the EDT is when the notice expires according to s97 (1)(a) ERA 1996. The 3 months to file your case in the Employment Tribunal starts running from the day after your notice period ends. Under s111(3) ERA 1996, if you are dismissed with notice you can bring your Employment Tribunal claim before the EDT as long as you bring your claim after notice has been given by your Employer. EDT where you are dismissed without notice (Summary Dismissal) Under s97(1)(b) ERA 1996 if you are dismissed without notice, the EDT is the date when you are dismissed. If you are on a fixed term contract which is not renewed the EDT is when the fixed term expires (s97 (1)(c) ERA 1996). In Kirklees Metropolitan Council v Radecki CA 2009, the Court said that dismissal without notice takes effect at the precise moment it is communicated. EDT where you resign (constructive dismissal) If you resign and claim constructive dismissal the same principles mentioned above in dismissals with notice, and without notice will apply. So, if you give notice, the EDT is when the notice expires. If you do not give notice the EDT is the date you left the workplace for good.

Remedies The rule against enforcement The tribunal will not enforce a contract Therefore once wrongful dismissal has been established the contract is terminated The Trade Union and Labour Relations (consolidation) Act 1992 s236 provides that no court shall issue an order compelling an employee to do any work or attend at any place for the doing of any work There are however exceptions to this rule